Technology Editor

The retail boxed copies of Windows 8 Pro and Windows 7 Pro. The former requires a previous installation of Windows.

Boxed copies of Windows 8 are "misleading" customers and breach consumer law, according to a formal complaint filed by an Australian consumer that has received support from consumer group Choice.

The complaint to the Australian Competition and Consumer Commission (ACCC) comes as Microsoft announced in the US on Tuesday that it had sold 40 million Windows 8 licences – a strong result despite some retailers and analysts reporting slow sales.

Microsoft only sells the "upgrade" version of Windows 8 Pro in Australia at major retailers, meaning you must have an existing copy of Windows installed on your machine first. Users cannot install it on a freshly formatted hard drive or a PC they've built themselves without an existing Windows installation.

With Windows 7 the upgrade-only version, left, was clearly marked "Upgrade" on the box.

With Windows 7, the upgrade version was clearly labelled on the box as an "upgrade" and text explained that prior versions of Windows were required.

Advertisement

But there are no equivalent markings on the Windows 8 Pro packaging.

Microsoft confused matters further in its press release, saying Windows 8 Pro would be available off-the-shelf as a "full packed product". However, at the launch event in October, it clarified that the boxed copies in stores in Australia were upgrades only.

John Hollow believes the packaging leads consumers to believe they are buying the full version, and has complained to the ACCC, alleging "misleading and deceptive representation of the product".

“I'm not after or anti-Microsoft, I just want to see them do the right thing, and in my mind, they've crossed the line," Hollow said in an email.

Consumer group Choice has backed Hollow's assessment.

"Certainly [there is] potential for consumers to be confused and possibly even misled, thinking that this is a full product rather than an upgrade," said Choice spokeswoman Ingrid Just.

Choice said the average consumer would not necessarily know the product was an upgrade version, based on just the price ($69.99 in stores, $39.99 as a digital download).

"It's almost like a reverse 'up-sell' – giving you the fries and then asking if you would like a burger with your purchase," said Just.

"At the very least, Microsoft should have a sticker on their box clearly marking it as an upgrade only."

But Daniel Tagg of distributor Altech says he believes consumers were not misled because the retailers label the product as an upgrade on their catalogues and websites.

The only way to buy the full version is to get the non-boxed OEM disc from smaller specialist computer stores. OEM versions are only supposed to be sold with PCs built from scratch (or individual hardware components) bought from specialist PC retailers, but this isn't strictly enforced.

The ACCC does not comment on whether it is investigating companies. A Microsoft Australia spokesman said: "We're aware of the matter and will work with the ACCC on any concerns."